In this diversity action plaintiff Antonio Cipollone, acting individually and as the administrator of his deceased wife's estate, seeks damages against the companies that manufactured and sold cigarettes which he alleges to be the proximate cause of her lung cancer and death. At this juncture, plaintiff moves in limine for an order precluding the defendants from introducing evidence as to the cigarette industry's collateral benefits to the economy as part of their defense to those of his strict liability claims which are premised on "risk/utility" theory. Having examined the judicial precedent and scholarly commentary defining the scope, purpose and operation of risk/utility theory, the court concludes that plaintiffs are entirely correct and that all such collateral benefit evidence should be ordered excluded as an inappropriate consideration under risk/utility analysis.

BACKGROUND

Rose and Antonio Cipollone filed this complaint on August 1, 1983 against defendants Liggett Group, Inc., Philip Morris, Inc., and Loew's Inc., alleging that Rose Cipollone had developed lung cancer as a proximate result of her use of defendants' products over a period of approximately forty years. On May 31, 1985, Antonio Cipollone filed a third amended complaint reflecting the fact that Rose Cipollone had died as a result of the cancer that had given rise to this suit.

The instant motion relates to the evidence which the parties plan to introduce with regard to plaintiff's strict liability claims. In September of 1983 plaintiff served a First Set of Interrogatories on the defendants, two of which were directed to the "risk/utility" issues which is a significant aspect of New Jersey strict liability law. Those interrogatories, and defendant Liggett Group's supplemental answers, state in relevant part as follows:

INTERROGATORY NO. 48: Do you contend that the cigarettes which you manufacture have social utility? If so, set forth:

(a) a full and detailed description of the factual basis for this contention . . . .

INTERROGATORY NO. 49: If your answer to the foregoing interrogatory is in the affirmative, state whether you contend that the social utility of the cigarettes which you manufacture outweighs the health risks associated with the smoking of these cigarettes. If so, set forth:

(a) a full and detailed description of the factual basis for this contention . . . .

Supplemental Answer : Without agreeing that application of a risk/utility test is appropriate in this case, Liggett states as follows: The chief component of the social utility of cigarettes is the enjoyment that they provide the millions of individuals in this country who have chosen to smoke. Cigarette smoking was a popular practice long before the advent of the cigarette industry. The cigarette manufacturers came into existence to satisfy the preexisting demand for cigarettes.

Liggett is unaware of any study which has sought to place some numerical value, whether a dollar figure or otherwise, upon the total enjoyment experienced as a result of smoking by those who have chosen to smoke. Although this "societal enjoyment" may defy precise measurement, its existence in a society where so many have chosen to smoke for so many years is irrefutable.

The cigarette industry is a major contributor to the nation's economy. The industry provides thousands of jobs in manufacturing and in sales. Moreover, thousands of farm families derive their livelihood from their tobacco crop. Cigarettes are an important export and as such have a favorable impact upon the nation's balance of trade. And, of course, the industry contributes substantially to the public fisc by way of its payment of federal, state and local taxes.

The Congress of the United States has determined that it is legal to manufacture and sell cigarettes. In so doing, Congress has determined not only that cigarettes have social utility, but has concluded that their social utility exceeds any costs associated with their use. In the Congressional deliberations that led to passage of the Federal Cigarette Labelling and Advertising Act (1965), as amended by the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331, 1340, prohibition of the sale of cigarettes was considered. Congress opted instead to allow their sale -- and to prevent the destruction of the tobacco industry -- as long as consumers were given the prescribed warning. Liggett contends that the Act evinces a Congressional determination (1) that cigarettes have social utility; (2) that the social utility of cigarettes sold with the prescribed warning on the package outweighs any risk associated with such cigarettes; and (3) that ultimately only the individual can make the risk/utility analysis since the decision whether or not to smoke is a personal one.

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Each individual makes that personal cost-utility determination when he chooses to smoke. As an example, Mrs. Cipollone smoked cigarettes because she enjoyed them. Moreover, Mrs. Cipollone made her decision with full knowledge of the reports purporting to show that cigarette smoking caused various adverse health effects, which information had been a matter of ...

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